Most court watchers were caught off guard by Justice Sandra Day O’Connor’s retirement announcement last week. While her retirement had been anticipated, conventional wisdom said that Chief Justice William Rehnquist, who has been suffering from thyroid cancer, would be the first to step down. The Beltway prognostication has now readjusted, with consensus forming around the theory that Rehnquist’s retirement is still imminent–although speculation as to the timing of his retirement varies from those who claim that he will retire immediately following the confirmation of Justice O’Connor’s replacement, to those who think he will try to serve out the next term. But how about he resign today?
Following Justice O’Connor’s retirement, court watchers and liberal advocacy groups were forced to readjust their calculations as to how the confirmation battle will play out. Under the prior retirement model, in which Rehnquist would step down first, and O’Connor second, many armchair politicos believed that President Bush would appoint a solid conservative like Judge Michael McConnell (Tenth Circuit), Judge John Roberts of the D.C. Circuit, or Judge J. Michael Luttig of the Fourth Circuit. While liberal groups would protest, the nominee would likely be confirmed, because most liberals would ultimately see this as a wash–replacing an “arch-”conservative with a conservative.” The larger battle under this scenario would be over Justice O’Connor. Consensus had not (and has not) formed around her replacement, with some believing that the president would appoint his old friend Attorney General Alberto Gonzales, while others thought he would opt for a more conservative nominee like Judge Emilio Garza (5th Circuit) or Judge Edith Jones (5th Circuit).
But with O’Connor’s resignation coming first, these assumptions (which, given a non-leaking White House, are just guesses) have been brought into question. If the president appoints a conservative to replace Justice O’Connor–conservative in this case having been defined down by the Left to refer only to the proposed nominee’s position on Roe v. Wade–it is believed that a more broadly defined conservative replacement for Rehnquist will not be acceptable to liberal advocacy groups, or the Senate Democrats’ obstructionist caucus. Because there is a strong impetus to replace Justice O’Connor with a qualified woman or another “identity” pick, and because there will be pressure for the administration to put forward a more moderate candidate like Gonzales for Rehnquist’s replacement, qualified conservative judges face the prospect of being frozen out of consideration.
By retiring in seriatim, Chief Justice Rehnquist gives the Left more time to implement this strategy–that is, more time to drum up support for a watered-down replacement for the chief justice, as well as the benefit of hindsight in how it conducts its obstruction. However, if Rehnquist were to retire now, it might strengthen the White House’s hand. Despite the fact that the nominees would in some measure be lumped together under a simultaneous retirement, such an approach would likely have the effect of making the process more separated by returning consideration and comparison of each nominee to his replacement, rather than focusing attention on the candidate’s merits as weighed against the effect of the prior confirmation. Accordingly, while the senators will necessarily consider the total perceived effect on the Court by both nominees, under this system it is more likely that the issues will be framed in terms of: Is Nominee X a good replacement for O’Connor? Is Nominee Y a good replacement for Rehnquist? Rather than: Given that Nominee Y replaced O’Connor, is Nominee X an acceptable replacement for Rehnquist.
Of course, there is nothing inherent in the confirmation process that says that senators should weigh the nominees differently when taken together than when taken separately. But it seems to be accepted that the ordering or timing of the retirements–even where the retirements were anticipated–makes a substantial difference. By retiring now, Chief Justice Rehnquist has the ability to take the timing element out of the equation, and thereby could shift the burden back to the liberals to explain why it is that the president should not be able to appoint a qualified conservative Hispanic or woman to replace Justice O’Connor, and an equally qualified conservative to replace Chief Justice Rehnquist, rather than why he should be able to appoint a conservative to replace Rehnquist after he put forward a conservative to replace O’Connor.
Like O’Connor’s “surprise” retirement, a retirement this week by Rehnquist would also have the salutary effect of throwing a wrench into the plans of liberal advocacy groups. Even if it did nothing else, an expeditious retirement would limit the time that liberal hatchet-men like Ralph Neas could spend fundraising in support of the bizarre theory that the views of the majority of Americans are somehow “outside the mainstream,” and therefore have no place in the federal judiciary.
Justice O’Connor and Chief Justice Rehnquist have almost certainly served longer than they would have preferred, or longer then prudence would have otherwise dictated, because of the rancor in the Senate over judicial confirmations. Both had reasons to step down before now: Chief Justice Rehnquist because of his own health, and Justice O’Connor because of the declining health of her husband. Indeed, Chief Justice Rehnquist may well have delayed his own retirement out of consideration for O’Connor’s family concerns. If delaying Rehnquist’s retirement carried some benefit to the confirmation process, then it would, perhaps, be worth the burden for him to delay his departure. But because his retirement now would leave us no worse off–and may actually leave us better off than we would be if he resigned later this term, the chief justice should take his well-deserved retirement now.
–Robert D. Alt is a fellow in legal and international studies at the John M. Ashbrook Center for Public Affairs at Ashland University.